Why put an employee to preventive suspension
According to Supreme court: Gatbonton vs. NLRC (G.R. No. 146779, January 23, 2006)
“Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.”
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According to Omnibus Rules in Implementing Labor Code
“Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers” (Rule XXIII, Book V).
This kind of suspension shall last longer than 30 days (In JRS Business Corp. v. NLRC, et. al., 246 SCRA 445 [1995], the Supreme Court penalized the employer to pay indemnity in the amount of P1,000 when it violated the maximum 30-day preventive suspension.) The employer shall thereafter, reinstate the worker in his former or in a substantially equivalent position (actual reinstatement) or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker (payroll reinstatement). In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decided, after completion of the hearing, to dismiss the worker.
How to put an employee to a preventive suspension
You may include the notice of preventive suspension on the notice to explain
Can abuse of this be a ground for constructive dismissal?
Yes ,When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement (see Hyatt Taxi Services Inc. vs. Rustom M. Catinoy, G.R. No. 143204, June 26, 2001), or when preventive suspension is for indefinite period (see Pido vs. National Labor Relations Commission, G.R. No. 169812, Feb. 27, 2007), constructive dismissal will set in.
What violations are not covered by this kind of suspension?
The Court held that it is improper for the employer to place under preventive suspension employees charged of violation of school rules and regulations on the wearing of uniform, tardiness or absence, and maliciously spreading false accusations against the school. (See Woodridge School vs. Pe Benito, G.R. No. 160240, October 29, 2008.)
For preventive suspension to be legal, there should be an imminent threat to life and property.
Sir what if an employee was put on PS and part of the PS says ..”exiting imminent threat” , he is on PS for 30 days.
How do you know if its exisisting if there is no facts, evidence that threats been made? Verbals, cctv, emails..etc?
My concern is, what if the treats were merely hearsays, they just want to get rid of the guy when there are no evidence..
I have reviewed his NTE and all complains are made by anonymous, no dates, time or location the alleged incidents took place..
James, what is the actual case? just threats from anonymous sources? Due process require both substantial and procedural. One need to have basis case first (substantive due process) before proceeding to procedural (twin notice rule) where preventive suspension is only allowed on certain cases.
Would like to ask the allowable number of days of suspension to be served/ given to employees re: frequent tardiness ( after serving the written warning ?
it depends on your code of conduct/ employee discipline handbook
Good day Sir, hoping to get advice from you. We are about to put an employee on preventive suspension due to incident reports on misconduct (raising her voice in an aggressive tone, slamming her hands on the table, saying tactless comments, starting a quarrel with other employees).
Before the incident reports, we have been suspecting her of having a mental disorder due to her irrational behavior and odd way of conversing. So we asked her first if she is open to psychological counseling and evaluation to see if she is still fit to work and she agreed. The schedule for her psychological counseling is next week, but majority of our employees (about 20) are already complaining why she is not yet suspended.
Is it advisable to put her on suspension before her psychological evaluation results?
what is your basis for wanting to suspend here?
What if sobra na 30 days ang preventive suspension at wala pa result regarding sa case? Ano po pwede ko gawin ?
mag intay po ng result.
Hello, last October 2, I received NTE with PS. It will be due on Nov 2. Do i need to report to work after the suspension? I haven’t got advise from the management for the decision though. Or can I consider it as Constructive Dismissal since it is beyond 30 days na.
Please advise.
report back to work
Gdam.. is preventive suspension dedictibles to the length of service?
what do you mean, PS days will be deducted on employment tenure?